The Better Accessible Responsible ­Development (Bard) Campaign, which is opposed to the proposed eco-town of Middle Quinton, south of Stratford-upon-Avon, issued judicial review proceedings in relation to the Government’s initial April 2008 ­consultation document that sought the ­public’s views on an initial shortlist of 15 sites. On 11 September Mister Justice Collins granted permission, having “no doubt that the claim is arguable”. A hearing date is to be fixed. He “suspect[ed] that… there is little point in pursuing [the consultation process] until [the] claim is disposed of”.

When Bard learnt that the Government was going to continue despite Collins J’s observations, the campaign secured an assurance that the 19 February deadline would be extended if necessary in relation to Middle Quinton until six weeks after the conclusion of the proceedings. The Government also acknowledged that it would be proceeding with its further work “at risk” until the outcome of the proceedings.

Scheme promoters may be wondering what prize awaits the eventually selected list of “up to 10” sites. The Government is engaged in a delicate balancing act. On the one hand selection cannot mean an ­automatic green light to build – that would be alien to the statutory planning system, ­rooted in local democracy and requiring adherence to detailed regulatory procedures. On the other hand, in return for the time, money, flak and commitment to expensive eco-standards, it has to be more than a pat on the back.

What’s in store?

The implications of the draft planning policy statement appear to be that:• Where a scheme is identified in the final list, regional planning bodies should ­consider the location in preparing their regional spatial strategy.• Even if a scheme in the final list is not in the regional spatial strategy local authorities should include it as an option for consideration when ­preparing their core strategy.• If a planning application for a scheme in the final list comes forward before there is regional and local policy backing, its ­identification in the list will be a ‘material consideration’ for the authority to take into account.

Will this satisfy either camp? On the one hand, campaigners see a risk of a proposal for a new town of more than 5,000 homes being shoehorned into local policies when there are concerns over the procedure that led to the scheme’s selection in the first place and to the identification of that level of additional housing in the district. On the other hand, the scheme’s promoter may wonder whether they will be able to clear the remaining hurdles (preferably well before an election) without a compliant local authority or a lengthy appeal to the ­Secretary of State when the economy is ­having an effect on viability.

Foul play?

How did we get here? The Government first announced a plan to build an unspecified number of zero-carbon or low carbon developments of 5,000-10,000 homes in March 2007. The term ‘eco-town’ was first coined in May 2007 when Gordon Brown announced that five (increased to 10 in September 2007) would be built. The decision could have been taken to bring forward specific legislation to focus on giving financial and other assistance to promoters, or indeed to task English Partnerships with securing sites and promoting the schemes.

However, instead, when the Eco-towns Prospectus was published in July 2007, it became clear that the prize for selected schemes would include an express ticket through planning procedures: the selected eco-town would be “dealt with quickly through the planning system using mini [regional spatial strategy] reviews and use of new town powers where necessary to secure implementation”. When 15 schemes were shortlisted in April 2008 from the 57 that were submitted, without strategic ­environmental assessment or, according to objectors, the testing and transparency that would have come via the regional and local planning process, and given that the final sites were likely to be chosen from that shortlist, affected local authorities and ­communities inevitably cried foul.

So what next? Some wonder whether the Infrastructure Planning Commission ­proposed in the Planning Bill to consider major infrastructure proposals might be given the role of considering eco-town ­proposals. But the Government has rightly committed not to use that route. Some ­promoters may choose to go it alone without the ‘eco-town’ tag. Others will continue, hoping to steer through the political, legal and financial risks. In the meantime, ­opportunities may have been missed for more pragmatic solutions to the threats of climate change and an acute housing ­shortage.

Simon Ricketts is a partner at SJ Berwin and is acting for the Bard Campaign in relation to the proposed eco-town Middle Quinton